Chirinos v Umanzor, 2019 WL 2287975 (N.D. Texas, 2019) [Honduras] [Habitual residence] [Grave risk of harm] [Petition granted]

          In Chirinos v Umanzor, 2019 WL 2287975 (N.D. Texas, 2019) the district court granted the Petition of Nahum Mendieta Chirinos for the return of his two children, Y.A. and I.N., to Honduras. 

          Petitioner was a resident of Honduras and resided there. Respondent and the children, Y.A. and I.N., initially resided in Honduras, but immigrated to the United States in late 2017. Respondent and the children resided in Irving, Texas.  Y.A. was born on March 29, 2012, and I.N. was born on October 8, 2015. Both children were born in Honduras and lived there until November 2017. In November 2017, Respondent and the children left Honduras and entered the United States in December 2017. [Petitioner did not give consent, written or otherwise, to Respondent’s removal of the children from Honduras. No court, in Honduras or elsewhere, had granted Respondent full custody of the children or has stripped Petitioner of his custody rights. Respondent and the children remained in the United States.  Petitioner commenced this action on October 9, 2018, seeking the return of the children to Honduras.

          The trial testimony revealed that Petitioner and Respondent met at a dance in Honduras in 2006 and began a relationship. The two were romantically involved until Petitioner illegally immigrated to the United States later that year. Petitioner remained in the United States until he was deported in 2010. After his deportation, Petitioner returned to Honduras and the romantic relationship between Petitioner and Respondent resumed. Respondent became pregnant with the couple’s daughter, Y.A., in 2011. After Respondent learned that she was pregnant, Petitioner and Respondent began living together at the home of Petitioner’s mother. Y.A. was born on March 29, 2012, and lived with Petitioner and Respondent at the home of Petitioner’s mother until at least April 2015. Petitioner testified that, on November 27, 2017, he borrowed a bicycle and went to see the children at Respondent’s grandparents’ home. Upon arriving, Petitioner allegedly heard Respondent speaking to a “coyote” with whom Respondent planned to travel to the United States. Petitioner testified that, after hearing this, he told Respondent the he did not want the children going to the United States. Petitioner testified that he returned the next day and found that Respondent and the children were gone.  Petitioner then sought legal help to secure return of the children.

          The Court found that Petitioner established a prima facie case for return under the Hague Convention and that Respondent had not shown that any defense to return applies. Therefore, the Court ordered the return of Y.A. and I.N. to Honduras. The court noted that to  establish a case for return under the Hague Convention, a petitioner must show that:  “the respondent removed or retained the child somewhere other than the child’s habitual residence”; “the removal or retention violated the petitioner’s ‘rights of custody’ under the habitual-residence nation’s laws”; and  “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been exercised but for the removal or retention.” Larbie v. Larbie, 690 F.3d 295, 307 (5th Cir. 2012). A petitioner must prove each of these elements by a preponderance of the evidence. Id.

Here, the parties stipulated that, prior to November 2017, neither child resided in any country other than Honduras. The parties also agreed that Petitioner never gave consent or otherwise acquiesced to the removal of the children from Honduras. The last location of shared intent for the children’s residence was Honduras. The parties agreed that no Honduran court had entered an order granting Respondent full custody of the children, and there was no evidence that any other formal custody agreement between the parties exists.  Therefore, the Court looked to the custody rights provided by Honduran law. Article 187 of the Honduran Family Code provides that “parental authority belongs to both parents jointly.” “Parents in the exercise of parental authority have the right to exercise guidance, care and correction of their children, and provide them in line with the evolution of their physical and mental faculties, the direction and guidance that is appropriate for their development.” Additionally, parental authority includes the right to legally represent the child, “exercise their care and custody,” feed, assist, educate, and manage their assets. Finally, Honduran law provides that, when both parents exercise parental authority, each parent has a ne exeat right: a right to consent before the other parent can take the child out of the country. Article 101 of the Honduran Code of Childhood and Adolescence requires that “[i]f parental authority is exercised by both parents, the written authorization of the other is required if just one parent is traveling with the child during [a] trip [outside of Honduras].” The Supreme Court has held that a “ne exeat right is a right of custody under the Convention.” Abbott, 560 U.S. at 10. The Court found that Petitioner had custody rights in the children and that Respondent’s removal of the children violated these rights.

Finally, the Court found that Petitioner was actually exercising his custody rights at the time of the removal or would have exercised those rights but for the removal. Larbie, 690 F.3d at 307. The leading case setting out the standard under which courts are to consider this element is Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. 1996) (“Friedrich II”). The court held, “[t]he only acceptable solution, in the absence of a ruling from a court in the country of habitual residence, is to liberally find “exercise” whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.” Id. The Friedrich II court continued: [I]f a person has valid custody rights to a child under the law of the country of the child’s habitual residence, that person cannot fail to “exercise” those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child. The Fifth Circuit has adopted the standard articulated in Friedrich II and has emphasized that “even occasional contact with [a] child constitutes ‘exercise’ of [custody] rights.” Sealed Appellant v. Sealed Appellee, 394 F.3d 338, 345 (5th Cir. 2004).  The testimony of the parties was directly conflicting on this point. Petitioner testified that Respondent left his mother’s home in mid-to-late 2016 and that he visited the children almost daily thereafter. Respondent testified that she moved out in April 2015 and that Petitioner only saw the children two or three times after this date. In resolving this disagreement, the Court finds convincing and credible the accounts of the witnesses supporting Petitioner. In weighing the testimony, the Court also noted significant inconsistencies in Respondent’s version of the relevant events. The documentary evidence also supported a conclusion that Petitioner kept some contact with the children after the time that Respondent alleged that he did not. Petitioner provided a photograph showing Petitioner, Respondent, and both children together. Respondent countered that this was taken during one of the very few instances in which Petitioner saw the children after she left. Petitioner, however, introduced other photographs that show Y.A. standing in front of the distinctly colored walls of Petitioner’s mother’s home. One such photograph, posted on Respondent’s Facebook page one day after Y. A’s fourth birthday, which was March 29, 2016, clearly suggested that Petitioner remained in contact with the children—contrary to the testimony of Respondent. Petitioner also offered photographs showing I.N. in front of the same distinctly colored walls of his mother’s home, and in a distinctly colored hammock which appeared in photographs of his mother’s home. This evidence strongly contradicted Respondent’s testimony regarding the extremely limited number of times that Petitioner allegedly saw I.N.

With the above directive in mind, the Court found that Petitioner established that he was actually exercising his custody rights prior to the removal of the children. He kept at least the required occasional contact with the children that is necessary to find that he was actually exercising his custodial rights. Sealed Appellant, 394 F.3d at 345. And the evidence did not suggest that Petitioner took acts that constitute clear and unequivocal abandonment of the children. Freidrich II, 78 F.3d at 1066. Additionally, the evidence suggested that Petitioner was exercising his ne exeat right prior to the removal by withholding permission for the children to leave the country.

                   

          Respondent raised the grave risk defense. Under this defense, return may be excused where there is a “grave risk” that return would “expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Lozano, 572 U.S. at 5. A party opposing a child’s return must prove the existence of “grave risk” by clear and convincing evidence. Madrigal v. Tellez, 848 F.3d 669, 676 (5th Cir. 2017). The alleged harm “must be a great deal more than minimal” and “greater than would normally be expected on taking a child away from one parent and passing him to another. “Domestic violence can satisfy the defense when the respondent shows by clear and convincing evidence a “sustained pattern of physical abuse and/or a propensity for violent abuse.” Ermini v. Vittori, 758 F.3d 153, 164 (2d Cir. 2014). Sustained spousal abuse can, in some instances, also create such a risk. Soto v. Contreras, 880 F.3d 706, 713 (5th Cir. 2018). The Court found that Respondent had not shown by clear and convincing evidence that return to Honduras would expose the children to a grave risk of harm. Respondent testified that Petitioner abused her physically and psychologically. However, Respondent identified only one specific instance in which Petitioner allegedly abused her physically—when Petitioner allegedly pushed her after she confronted him about his involvement with another woman. This unsupported testimony, even if taken as true, did not establish a pattern of sustained spousal abuse by clear and convincing evidence. And Respondent presents no evidence that Petitioner ever abused either of the children.

Respondent also testified that she found cocaine in Petitioner’s pocket three times, and that she worried that Y.A. would find the drugs and accidently consume them. Petitioner testified that he has never used drugs. Petitioner would take both children on rides on his motorcycle. Petitioner’s supporting witnesses all testified that, in their opinion, Petitioner was a good father. Petitioner’s girlfriend, also testified that she trusts Petitioner to be around her 13 and 10-year-old children. The Court held that the conflicting evidence regarding alleged past drug use or rides on a motorcycle did not establish the existence of such a future harm by clear and convincing evidence. Respondent did not meet her burden to prove the grave risk defense.

Djeric v Djeric, 2019 WL 2374070 (S.D. Ohio, 2019)[Serbia] [Necessary Costs and expenses] [Clearly inappropriate]

          In Djeric v Djeric, 2019 WL 2374070 (S.D. Ohio, 2019) after the Court ordered Mr. Djeric to return the parties’ child to Ms. Djeric in accordance with the Hague Convention, Ms. Djeric’s attorneys applied for attorneys’ fees and costs. The Court pointed out that Yazan Ashrawi and Zackary Stillings, attorneys with the law firm Frost Brown Todd LLC, represented Ms. Djeric in the matter on a pro bono basis and that their work was exceptional. Over approximately three months, Mr. Ashrawi worked more than 87 hours; Mr. Stillings worked 176 hours. They collectively requested $69,095.50 in attorneys’ fees and $1,059.59 in expenses, including court costs and the costs of travel, deposition transcripts, and printing.     

          Mr. Djeric argued any award of fees would be inequitable because Ms. Djeric was represented pro bono, while Mr. Djeric paid $18,000 for his attorney by emptying his savings account and exhausting his credit limits on two credit cards. He claimed he relied on a relative’s financial help to purchase the airfare to return his child to Ms. Djeric. Mr. Djeric offered his tax return to show his income last year was under $25,000. He also asserted that he had no personal property available to obtain another loan or a second mortgage. Additionally, Mr. Djeric argued that any award would be inequitable because it would significantly hinder his ability to provide for his newborn baby. Next, Mr. Djeric argued that any award of fees would be inappropriate and unnecessary since the purposes of ICARA’s fee-shifting mechanism are to restore Ms. Djeric to her original financial position and to deter Mr. Djeric from wrongfully retaining the child in the first place, neither of which applied here. The Court agreed in large part. It held that based on the purposes of ICARA’s fee-shifting mechanism and Mr. Djeric’s financial circumstances, it would be “clearly inappropriate” to require him to pay $70,155.09. See Montero-Garcia, 2013 WL 6048992, at *4–6; Mendoza v. Silva, 987 F. Supp. 2d 910, 917 (N.D. Iowa 2014); East Sussex Children Servs. v. Morris, 919 F. Supp. 2d 721, 734 (N.D. W.V. 2013). Mr. Djeric had a mistaken, but nevertheless good faith belief that the parties had agreed that he would take their child to the United States to attend school. Moreover, Mr. Djeric’s financial condition was such that it was “clearly inappropriate” to award significant legal fees against him, because he would be unable to pay $69,095.50 and still provide support to his children, and because an award would simply convert Ms. Djeric’s pro bono representation into a marital debt. Regarding the expenses and costs resulting from this case, however, the Court concluded that it was reasonable for Mr. Djeric to pay those, as a matter of equity. See Mendoza, 987 F. Supp. 2d at 917. The Court denied Ms. Djeric’s request for an award of attorney’s fees, and granted Ms, Djeric’s request for court costs and expenses. The Court ordered Mr. Djeric to pay $100.00 each month to Frost Brown Todd LLC, for a total amount of $1,059.59.

Eidem v Eidem, 2019 WL 1894376 (S.D.N.Y., 2019)[Norway] [Habitual residence] [Grave risk of harm] [Petition granted]

In Eidem v Eidem, 2019 WL 1894376 (S.D.N.Y., 2019) the district court granted the petition of Per Magne Eidem (“Petitioner”) for an order directing the return of his two sons to Norway. Petitioner was a Norwegian citizen who was born and raised in Norway. Respondent, a dual citizen of the United States and Norway, was born in Brooklyn, New York, but moved to Norway with her mother in 1993 at the age of eight. The parties married on June 9, 2008.and lived together in Norway from 2005 until 2013.The parties had their first child, T.E., on August 25, 2008.  Shortly after his birth, T.E. was diagnosed with Hirschsprung’s disease, a condition wherein nerves are missing from parts of the intestine, and he underwent a “pull-through” surgery at a hospital in Trondheim to remove part of his colon.  The Trondheim hospital, located four hours by car from Elnesvågen, was one of two hospitals in Norway capable of performing a pull-through surgery. The parties had their second child, N.E., on December 8, 2010. From a young age, N.E. had difficulties with verbal skills. On June 24, 2013, Respondent filed for separation, and the parties were legally divorced in 2014. Following their divorce, the parties entered into a visitation agreement providing for joint custody over the children. The agreement explained that the children’s “permanent place of abode” would be with Respondent, but that Petitioner would have custody over the children every other Wednesday and Thursday, every other weekend from Friday to Monday, and every other year for several holidays. 

During the summer of 2016, Petitioner signed a letter of parental consent allowing Respondent to travel to the United States with the children for a one-year period.  The parties agreed that Respondent would return the children to Norway before the beginning of the Norwegian school term in August of 2017.  As of January of 2017, Petitioner began coordinating the children’s return to Norway with Respondent.  By April of 2017 Respondent had decided that she was going to stay in New York with the children. Nevertheless, she lied to Petitioner and told him that she had purchased airline tickets for the children to return to Norway on August 8, 2017. As a result, on August 8, 2017, Petitioner went with his father to the Molde Airport to meet the children. After the flight landed and Petitioner realized that the children were not actually on board, he reached out to Respondent, who admitted that she had lied about purchasing airline tickets and explained that she was going to keep the children in the United States. Respondent then cut off all contact between Petitioner and the children. Although Petitioner tried calling at least a dozen times, Respondent never answered. Petitioner initiated this action on July 6, 2018. At a pre-trial conference Respondent explained that she currently did not intend to return to Norway with the children if the Court ordered their return to Norway. 

  The district court noted that in Gitter, the Second Circuit set forth a two-part test for ascertaining a child’s habitual residence pursuant to the Hague Convention: First, the court should inquire into the shared intent of those entitled to fix the child’s residence (usually the parents) at the latest time that their intent was shared. In making this determination the court should look, as always in determining intent, at actions as well as declarations. Normally the shared intent of the parents should control the habitual residence of the child. Second, the court should inquire whether the evidence unequivocally points to the conclusion that the child has acclimatized to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parents’ latest shared intent. Gitter.

The court found that the last shared intent of the parties was clearly for the children to be habitual residents of Norway. Respondent admitted that, when the parties agreed that Respondent would take the children to the United States in August of 2016, their shared intent was for the children to live in the United States for one year only, and to return to Norway – where they had lived the entirety of their lives to that point – before the beginning of the Norwegian school year in August 2017. The court found that the children had not so acclimatized to the United States that they had acquired a new habitual residence. A court can conclude that a “child’s habitual residence has shifted to his or her new location” only under the “relatively rare circumstances in which a child’s degree of acclimatization is so complete that serious harm can be expected to result from compelling his or her return to the family’s intended residence.” Mota v. Castillo, 692 F.3d 108, 116 (2d Cir. 2012) The Court concluded that Petitioner made out a prima facie case of wrongful removal and retention of the children under ICARA.

Respondent argued that the children would be exposed to grave risk of harm if they were returned to Norway because Petitioner allegedly abused her in front of the children throughout their marriage. Respondent detailed one incident in which, after Petitioner “refused to help” with the children, Respondent threatened to throw Petitioner’s computer out the window and Petitioner “struck [her] across the face with his hand, knocking [her] to the ground” in front of the children, who were four and two years old at the time. Petitioner denied abusing Respondent. Regardless of whose version of the altercation was closer to the truth, the parties were now divorced and would not be residing together under any circumstances. Thus, the likelihood of future physical alterations between them was remote. Furthermore, there was simply no evidence to suggest that Petitioner had ever abused the children, or that he would ever do so. The Court found no basis to conclude that the children would be placed in grave danger if they were returned to Petitioner’s custody.

Finally, Respondent argued that the children will be exposed to grave risk if they were taken away from the network of doctors overseeing their care in the United States. Although the Court acknowledged that an abrupt termination of the children’s current mental health treatment could pose some danger to their well-being, the Court concluded that such danger would be sufficiently mitigated if the children were moved after the conclusion of the school year. 

Palencia v Perez, 2019 WL 1907867 (11th Cir., 2019)[Guatemala] [Rights of custody] [Petition granted] [affirmed]

In Palencia v Perez, 2019 WL 1907867 (11th Cir., 2019) the district court concluded that Marilys Velasquez Perez had wrongfully retained her son, H.J.D.V., in the United States and away from Guatemala, his place of habitual residence. It granted the petition filed by H.J.D.V.’s father, Jose Diaz Palencia, and ordered that the child be returned to Guatemala. The Eleventh Circuit affirmed. 
  
Ms. Perez and Mr. Palencia had never been married, but they had a child, H.J.D.V., who was born in Guatemala in 2013. They lived there together until Ms. Perez left with H.J.D.V. in October of 2016. In October of 2016, Ms. Perez told Mr. Palencia that she wanted to take H.J.D.V. to Chiapas, Mexico, to visit relatives for a week. Mr. Palencia did not object. Ms. Perez never indicated that she intended to take H.J.D.V. to the United States, and Mr. Palencia never agreed to her doing so. Nor did he agree to Ms. Perez taking H.J.D.V. away for longer than a week. Rather than visiting Mexico, Ms. Perez took H.J.D.V. to the United States, where they were detained at the border. 12 days later, Ms. Perez called him from a detention facility in the United States. She told him that she had made a mistake, asked for forgiveness, and said that she would return to Guatemala with H.J.D.V. She explained that, to be able to return, she needed Mr. Palencia’s assistance in obtaining passports for herself and H.J.D.V. Mr. Palencia cooperated. It took months for the passports to be issued, during which time Ms. Perez repeatedly told Mr. Palencia she would return as soon as she had them. In July of 2017, after she had received the passports, Ms. Perez told Mr. Palencia she would not be returning to Guatemala with H.J.D.V.  Unbeknownst to Mr. Palencia, Ms. Perez had filed an asylum application for herself and H.J.D.V. upon arriving in the United States. Mr. Palencia did not learn of the application until after he filed his Hague Convention petition in the district court. In connection with her asylum application, Ms. Perez completed a credible fear interview, in which she stated that she had never suffered violence at a romantic partner’s hands.

On February 25, 2018, Mr. Palencia filed a verified Hague Convention petition seeking H.J.D.V.’s return. On April 30, 2018, the district court commenced an evidentiary hearing and ultimately granted the petition.

Ms. Perez asserted that the district court committed several errors. The first was that the district court erred in its determination of Guatemalan law with respect to Mr. Palencia’s rights. The second was that the district court wrongfully concluded that July of 2017—when Ms. Perez informed Mr. Palencia that she would not return to Guatemala—constituted the date of H.J.D.V.’s wrongful retention. 


The Eleventh Circuit  looked to the law of Guatemala, the country of H.J.D.V.’s habitual residence, to “determine the content of [Mr. Palencia’s] right[s], while following the Convention’s text and structure to decide whether the right at issue is a ‘right of custody.’ ” Abbott v. Abbott, 560 U.S. 1, 10, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010). The district court’s determination of Guatemalan law was subject to plenary review, and in performing that review the court could conduct its own research of relevant sources. See Fed. R. Civ. P. 44.1; Animal Science Prods., Inc. v. Hebei Welcome Pharm. Co. Ltd., ––– U.S. ––––, 138 S.Ct. 1865, 1869–70, 201 L.Ed.2d 225 (2018). It observed that Guatemala is a civil law jurisdiction. The generally recognized sources of law in such a jurisdiction are constitutional provisions, statutes, administrative regulations, and customs. See generally John Henry Merryman & Rogelio Perez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (4th ed. 2019). Guatemalan caselaw did not provide any authoritative guidance.

Ms. Perez argued that Mr. Palencia, whom she never married, lacked “rights of custody” under Article 261 of the Guatemalan Civil Code. Article 261 provides in relevant part as follows: “Single or separated mother. When the father and the mother are neither married nor in a common-law marriage, the children shall be in the mother’s custody unless she agrees to transfer them to the father’s custody, or unless they are enrolled in a boarding school.” Guatemalan Civil Code, Chapter VII, Art. 261. According to Ms. Perez, Article 261 granted her exclusive patria potestad powers and, therefore, complete custodial authority as to H.J.D.V. Patria potestad is a Roman legal concept which, in its original form, gave a family patriarch absolute power over his child, but is now generally understood to be the rights any biological parent may exercise over a child. See Luis Ischiu v. Gomez Garcia, 274 F.Supp.3d 339, 346 (D. Md. 2017). The Court pointed out that Articles 252 and 254 of the Code discuss the concept of patria potestad. Under Article 252, “within a marriage or common-law marriage” patria potestad “is exercised jointly by the father and the mother over minor children,” and “in any other case, it is exercised by the father or the mother, depending on who has custody of the child.” And under Article 254, patria potestad encompasses “the right to legally represent a minor or disabled person in any civil procedure; to manage his or her assets; and to make good use of his or her services according to his or her age and condition.” Guatemalan Civil Code, Chapter VII, Art. 254.  As summarized by one district court, although the concept of patria potestad is not explicitly defined in the Code, it “covers [among other things] ‘the right to legally represent a minor ... in all civil acts ... to administer his or her assets and to take advantage of available services in view of his or her age and condition.’ ” Luis Ischiu, 274 F.Supp.3d at 346 (quoting translation of Article 254). Even assuming that Articles 261 and 254 granted Ms. Perez comprehensive patria potestad powers and primary custody over H.J.D.V., the Court concluded that a father in Mr. Palencia’s situation nevertheless retained certain rights and responsibilities under Guatemalan law. In its view, Article 253 established certain inalienable responsibilities for both parents of a child, even when the two are neither married nor in a formal union-in-fact. It provides as follows: “Duties of both parents. The father and the mother have a duty to care and provide for their children, whether born in or out of wedlock, and to raise and correct them using measured discipline. In accordance with criminal law, both shall be responsible should they leave them in a state of moral and/or material abandonment and fail to fulfill the duties inherent to parental authority.”

The Court noted that its task wass to decide this case “in accordance with the Convention.” 22 U.S.C. § 9003(d). As it read and understood the two provisions, Article 253 provides an unmarried father with certain obligations (and therefore certain rights) with respect to his child, with the caveat that Article 261 gives the mother the final say when the parents disagree on a given issue. Ms. Perez also relied on its  unpublished decision in Ovalle v. Perez, 681 F. App’x 777, 784–86 (11th Cir. 2017), which held that an unmarried mother had rights of custody within the meaning of the Hague Convention under Guatemalan law. But the decision in this case did not conflict with Ovalle. The panel in Ovalle addressed the rights of custody of an unmarried mother—not those of an unmarried father like Mr. Palencia—under Guatemalan law, and it naturally turned to Article 261 to answer that particular question. Because the panel in Ovalle addressed only whether the unmarried mother had rights of custody, it had no need to consider Article 253. This inquiry concerns the rights of the unmarried father, so Article 253 becomes relevant.

The Court turned next to Ms. Perez’s argument concerning the date of the wrongful retention. That date matters because, if a petition for return is filed more than one year after the wrongful retention (or removal), the Convention permits the parent who took the child to argue that return should not be ordered because the child is “now settled” in his or her new environment. See Convention, Art. 12; Lozano, 572 U.S. at 4–5, 134 S.Ct. 1224. Mr. Palencia filed his petition in February of 2018. The district court ruled that the wrongful retention took place in July of 2017 (when Ms. Perez told Mr. Palencia that she would not be returning to Guatemala with H.J.D.V.) and not in October of 2016 (when Ms. Perez left Guatemala with the child and told Mr. Palencia that she was going to Mexico for a week to visit family members). The district court reasoned that the wrongful retention could not have occurred in October of 2016 because at that time Mr. Palencia had consented to Ms. Perez and H.J.D.V. traveling to Mexico for a week, and he had no reason to demand the child’s return. The Eleventh Circuit agreed. 

The Eleventh Circuit held that for the purpose of determining the date of wrongful retention, a court should look to the date the petitioning parent learned the true nature of the situation. In Marks on behalf of SM v. Hochhauser, 876 F.3d 416, 417, 420–23 (2d Cir. 2017), the Second Circuit held that the wrongful retention occurred when the custodial parent told the non-custodial parent that she would be staying in the United States with their children and would not be returning to the country of the child’s habitual residence. The First Circuit reached the same conclusion in Darin v. Olivero-Hoffman, 746 F.3d 1, 10–11 (1st Cir. 2014). And in Blackledge v. Blackledge, 866 F.3d 169 (3d Cir. 2017), the Third Circuit similarly looked to the date the non-custodial parent’s consent expired. In each of these cases, although the petitioning and non-custodial parent initially assented to the child’s removal from the country of habitual residence, the date consent was revoked constituted the date of wrongful retention. It agreed with its sister circuits and noted that the case for such a rule is even stronger where—as here—the custodial parent makes affirmative representations regarding the date of the child’s return and then fails to act in accordance with them. “Wrongful retentions typically occur when a parent takes a child abroad promising to return with the child and then reneges on that promise[.]” Redmond v. Redmond, 724 F.3d 729, 738 n.5 (7th Cir. 2013).

When Ms. Perez and H.J.D.V. traveled to the United States and were detained at the border, Ms. Perez told Mr. Palencia that she had made a mistake and would return to Guatemala when she obtained passports for herself and the child. Mr. Palencia cooperated with the effort to secure the passports, and for months afterwards Ms. Perez told him that she was merely waiting for the passports to be issued to return to Guatemala. It was not until July of 2017 that Ms. Perez advised Mr. Palencia that she would not be returning H.J.D.V. to Guatemala. Before July of 2017, then, Mr. Palencia did not assert his rights of custody or revoke his consent to H.J.D.V. staying in the United States because he understood that Ms. Perez and H.J.D.V. would be returning to Guatemala as soon as they received their passports. It held that the district court correctly ruled that the wrongful retention took place in July of 2017, when Mr. Palencia’s consent for H.J.D.V. to remain in the United States expired. See Hochhauser, 876 F.3d at 420–23; Blackledge, 866 F.3d at 179; Darin, 746 F.3d at 10–11. 

Capalungan v Lee, 2019 WL 1872978 (S.D. Ohio, 2019)[Australia] [Habitual residence] [Recommendation that petition be denied]

         In Capalungan v Lee, 2019 WL 1872978 (S.D. Ohio, 2019) the Magistrate judge recommended that the Petition for return be denied.

         The parties were the biological parents of a six-year-old child, EZL. Petitioner was EZL’s mother and a resident of Australia. Respondent was EZL’s father and a resident of the United States. For the first four and a half years of EZL’s life, Petitioner was his primary caregiver. In February 2017, Petitioner brought EZL to the United States for a visit with Respondent. The parties agree EZL was to be returned to Australia to the custody of Petitioner. Respondent conceded that he violated the parties’ agreement that EZL be returned to Australia.

The court observed that in cases of wrongful retention, courts must determine the child’s habitual residence at the time the wrongful retention began. At the time of his alleged wrongful retention, EZL was five years old. For children this age, the Sixth Circuit generally applies an acclimatization standard to determine habitual residence, asking “whether the child has been physically present in the country for an amount of time sufficient for acclimatization and whether the place has a degree of settled purpose from the child’s perspective.” EZL had lived in the United States for approximately ten months before the alleged wrongful retention. During that time, he developed close relationships with family members here, attended school, made friends, and participated in a variety of extracurricular activities. At the time of the alleged wrongful retention, the United States was therefore EZL’s habitual residence. As a result, the Hague Convention cannot provide relief for Petitioner here.

Petitioner and Respondent were the biological parents of EZL. The parties began their relationship in the Philippines where Petitioner was a nurse and Respondent was a doctor. Respondent moved to the United States in April 2011. EZL was born on August 31, 2012 in the Philippines. At that time, Respondent was living in the United States. While Petitioner and EZL resided in the Philippines, the parties did not have any custody agreement or order. Although Respondent did not pay child support to Petitioner, Respondent’s father provided the parties with financial support when Respondent was in the Philippines. Additionally, the parties set up a joint bank account in which they save money given to them as gifts for EZL.

Petitioner traveled to the United States in December 2017 for the purpose of taking EZL back to Australia. Respondent refused to give her EZL’s passport, and she was unable to bring EZL home with her. Before Petitioner returned to Australia, Respondent agreed to return EZL when his U.S. passport was issued. On January 8, 2018, shortly after Petitioner returned to Australia, EZL received his permanent resident card.  Towards the end of January, Respondent informed Petitioner that he would not return EZL to Australia when EZL’s passport was issued. Petitioner contacted the State Department’s Office of Children’s Issues to enroll in the Children’s Passport Issuance Alert Program (CPIAP) and put a hold on EZL’s United States passport. In response, Respondent burned EZL’s expired Filipino passport and sent Petitioner photos of the burnt passport. Petitioner subsequently withdrew EZL from CPIAP, which allowed his application for a passport to be processed. Throughout February and March 2018, the parties’ relationship continued to deteriorate. On February 16, 2018, the United States issued EZL’s passport. Respondent repeatedly refused to return EZL to Australia. Although Respondent had previously represented that the parties’ Shared Parenting Plan would only be used to enroll EZL in school, to justify his refusal to return EZL, he insisted that it gave him custody of EZL and therefore he was under no obligation to return EZL to Petitioner as the parties had agreed. On July 13, 2018, the United States government issued EZL’s certificate of citizenship, which indicated that EZL became a citizen of the United States on January 6, 2018. Respondent did not return EZL to Australia. Petitioner filed the Petition on October 23, 2018. 

The ourt noted that when determining a child’s habitual residence, the Sixth Circuit applies one of two standards depending on the facts of the case. Id. at 407. “The primary approach looks to the place in which the child has become ‘acclimatized.’” Id. (quoting Ahmed v. Ahmed, 867 F.3d 682, 687 (6th Cir. 2017)). When applying the acclimatization standard, “the question is whether the child has been physically present in the country for an amount of time sufficient for acclimatization and whether the place has a degree of settled purpose from the child’s perspective.” Taglieri, 907 F.3d at 408 (citation and internal quotations omitted). “District courts ask these sorts of questions in determining a child’s acclimatization: whether the child participated in academic activities, social engagements, sports programs and excursions, and whether the child formed meaningful connections with the country’s people and places.” This analysis is guided by five principles: First, habitual residence should not be determined through the technical rules governing legal residence or common law domicile. Instead, courts should look closely at the facts and circumstances of each case. Second, because the Hague Convention is concerned with the habitual residence of the child, the court should consider only the child’s experience in determining habitual residence. Third, this inquiry should focus exclusively on the child’s past experience. Any future plans that the parents may have are irrelevant to our inquiry. Fourth, a person can have only one habitual residence. Finally, a child’s habitual residence is not determined by the nationality of the child’s primary care-giver. Only a change in geography and the passage of time may combine to establish a new habitual residence. Robert the second approach, a back-up inquiry for children too young or too disabled to become acclimatized, looks to ‘shared parental intent. Taglieri (quoting Ahmed, 867 F.3d at 689). This standard requires courts “to identify the location where the parents intended the child to live.” Taglieri, 907 F.3d at 408.

To answer the question of which standard applied the court had to first determines when the alleged wrongful retention of EZL began. In the case of a wrongful retention, the time begins to run either (1) from the date the child remains with the abducting parent despite the clearly communicated desire of the left-behind parent to have the child returned, or (2) when the acts of the abducting parent are so unequivocal that the left-behind parent knows or should know, that the child will not be returned[.]Diagne v. Demartino, No. 2:18-CV-11793, 2018 WL 4385659, at *11 (E.D. Mich. Sept. 14, 2018) (internal citations omitted); see also Djeric v. Djeric, No. 2:18-CV-1780, 2019 WL 1046893, at *3 (S.D. Ohio Mar. 5, 2019) 

The Court indicated that in late December 2017 and early January 2018, Petitioner traveled to the United States with the intention of returning EZL to Australia. During that time period, she demanded that Respondent provide her with EZL’s passport and communicated her intention to return to Australia with her son. Respondent, nonetheless, refused to give Petitioner EZL’s passport, and EZL remained with Respondent in the United States. The Court found that the alleged wrongful retention began in late December 2017.At that time, EZL was five years old. The Sixth Circuit applies the shared parental intent standard to “infants,” “especially young children,” and children “too disabled to become acclimatized.” Taglieri, 907 F.3d at 407–08; Ahmed, 867 F.3d at 690. Courts in the Sixth Circuit generally apply this standard to children who are two years old or younger at the time of the wrongful removal or retention. See, e.g., Taglieri, 907 F.3d at 408. For children who are older at the time of the alleged wrongful removal or retention, courts in the Sixth Circuit generally apply the acclimatization standard. See, e.g., Jenkins v. Jenkins, 569 F.3d 549, 556 (6th Cir. 2009) With these guideposts in mind, the Court concluded that the acclimatization standard governs the habitual residence analysis.

The central question in this case was whether in late December 2017, EZL had been physically present in the United States for an amount of time sufficient for acclimatization and whether the United States had a degree of settled purpose from his perspective. Unfortunately for Petitioner, the Undersigned is required to determine EZL’s habitual residence at the time of the wrongful retention. And Petitioner had not met her burden to demonstrate by a preponderance of the evidence that Australia was EZL’s habitual residence in late December 2017. As its analysis made clear, for every piece of evidence that suggested Australia was EZL’s habitual residence in February 2017, a similar, if not identical, piece of evidence supported the conclusion that the United States was EZL’s habitual residence in late December 2017. In both countries, EZL lived with extended family and developed a particularly close relationship with one of his cousins. In both countries, EZL actively explored the local community, attended church, and went on excursions to parks and museums. In both countries, EZL attended school for a portion of the relevant time period. In short, if Australia was EZL’s habitual residence in February 2017, the Court had difficulty seeing how the United States was not EZL’s habitual residence in late December 2017. Under Sixth Circuit precedent, EZL had acclimatized to the United States by the time of the alleged wrongful retention in late December 2017. Consequently, the Hague Convention could not afford Petitioner relief here.

The Court pointed out that in coming to its conclusion, this is a cautionary tale about the limits of the Sixth Circuit’s acclimatization standard. In February 2018, when Petitioner discussed returning EZL to Australia, Respondent refused, stating, “[y]ou should have realised [sic] [EZL] is here and I have the edge...”. That is ultimately what this case was about. By refusing to return EZL to Australia consistent with the parties’ agreement, Respondent has manufactured a favorable status quo that he would undoubtedly rely on in any future custody proceedings between the parties. But that status quo is contrary to the parties’ shared intent, which the acclimatization standard does not permit courts to consider in resolving the habitual residence question in cases like this one. Rather than incentivizing behavior consistent with the purposes of the Convention, the application of that standard here appeared to reward Respondent for conduct that undermines the Convention’s mission. 

De Lucia v. Castillo, 2019 WL 1905158 (M.D. Georgia, 2019)[Italy] [Petition granted] [Necessary expenses]

In De Lucia v. Castillo, 2019 WL 1905158 (M.D. Georgia, 2019) the district court granted the petition of Roberto De Lucia, an Italian citizen, for the return of his children, R.T.D.L. and N.A.D.L to Italy. The children’s mother, Respondent Rachel Marina Castillo, was a citizen of Italy and Peru who moved with the children from Italy to Georgia in March 2018. De Lucia and Castillo began a relationship in Italy in 2010, although they never married. They had two children: R.T.D.L., who was born in November 2012, and N.A.D.L., who was born in August 2014 (“Children”). Both Children were born in Monza, Italy, and their birth certificates list De Lucia as their father. Castillo’s parents were United States citizens, and De Lucia and Castillo agreed to obtain permanent resident status (“green cards”) for the Children so that they could visit their grandparents easily and ultimately pursue higher education in the United States. When De Lucia agreed to obtain the green cards for the Children, he knew they would have to be present in the United States for some part of each year to maintain the green cards, but he did not agree for them to move to the United States. He believed that the Children would continue to live in Italy until they were old enough to attend college. Each summer, Castillo, A.M.A., and the Children spent approximately two months with Castillo’s parents in Athens, Georgia, then returned to Italy for school.

  De Lucia and Castillo separated in December 2016. After De Lucia and Castillo separated, De Lucia and Castillo shared unsupervised custody of the Children, and the Children lived with De Lucia at his parents’ house for part of each week. De Lucia and Castillo did not have a formal, court-ordered custody arrangement. In 2017, Castillo, A.M.A., and the Children visited Castillo’s parents for the summer. In September 2017, Castillo and the Children returned to Italy, but A.M.A. did not. De Lucia told Castillo that he did not want the Children to keep their green cards and that he would not permit the renewal of their passports. De Lucia wanted to require that the Children’s green cards be revoked, and Castillo would not agree to that condition. After De Lucia told Castillo in September 2017 that he did not want the Children to keep their green cards and that he would not permit the renewal of their passports, Castillo filed two police reports against De Lucia. Castillo reported that De Lucia had aggressive and violent attitudes. In November 2017, Castillo returned to the police. She reported that De Lucia raped her in January 2012; that he beat her and put his hands around her neck in May 2012 when she was pregnant with R.T.D.L.; that De Lucia sent her “an endless series” of threatening messages every day; and that when she was in a parking lot to make arrangements for the Children in October 2017, De Lucia pushed her and shut the car door on her finger. 

At the hearing, Castillo testified that De Lucia lost control and became physically violent with her, grabbing her by the neck once while she was holding one of the Children and pushing or hitting her on several other occasions, sometimes in front of the Children. Castillo also testified that De Lucia told her several times that he would kill her. Castillo testified that after De Lucia moved out of her apartment in December 2016, De Lucia did not hit her or put his hands on her in an inappropriate way, although he did use threatening words often, at times in front of the Children. Castillo did not produce any of the threatening messages she reported to the police in November 2017.

On March 23, 2018, without notification to De Lucia, Castillo took R.T.D.L. and N.A.D.L. to the United States. Shortly after that, Castillo told De Lucia via WhatsApp that she could not return to Italy right away but planned to return in the summer, and she invited him to come see the Children. In response, De Lucia told Castillo to come back to Italy and that she did not have his consent to take the Children out of Italy. De Lucia later filed an accusation against Castillo for child abduction.  At the hearing, De Lucia testified repeatedly that he did not give consent for the Children to travel to the United States. 
On March 30, 2018, Castillo’s lawyers filed a custody and maintenance case against De Lucia in Italian civil court. Castillo’s lawyer confirmed that Castillo did not intend to return to Italy with the Children, and on October 23, 2018, the Italian Court granted De Lucia temporary sole custody of the Children until an additional hearing could be held. 
The district court found that Italy was the children’s State of habitual residence on March 23, 2018, the day Castillo removed them from Italy. The Eleventh Circuit construe[s] the term’s ‘ordinary meaning as understood in the public law of nations. Citing the High Court of Justice in the United Kingdom, the Eleventh Circuit observed that “a habitual residence is established when ‘the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.’” (quoting In re Bates, No. CA 122.89 at 9-10, High Court of Justice, Fam. Div’n Ct. Royal Court of Justice, United Kingdom (1989)). Castillo contended that both Italy and the United States should be considered the Children’s places of habitual residence. The Court concluded that a child can have only one habitual residence at a time. Most (if not all) U.S. courts share the view that a person has only one habitual residence at a time. See, e.g., Didon v. Castillo, 838 F.3d 313, 316 (3d Cir. 2016) The Eleventh Circuit has offered “insight into the meaning of ‘habitual residency’ ” in “identifying when a child’s habitual residence has been changed.” Pfeiffer, 913 F.3d at 1024. The “two requirements to alter a child’s habitual residence” are “(1) the [people entitled to fix the child’s residence] must share a ‘settled intention’ to leave the old habitual residence behind; and (2) an ‘actual change in geography and the passage of a sufficient length of time for the child to have become acclimatized’ must occur.” Id. (quoting Ruiz v. Tenorio, 392 F.3d 1247, 1252-53 (11th Cir. 2004)) (per curiam). The Court could not find that the United States was the habitual residence of R.T.D.L. and N.A.D.L. on the date of removal, March 23, 2018. The evidence did not demonstrate a shared and settled intention of De Lucia and Castillo to abandon entirely the Children’s habitual residence in Italy and change it to the United States. At most, the evidence showed that De Lucia and Castillo shared a settled intention for the children to live in the United States each summer but live in Italy for the rest of the year. And, regardless of Castillo’s intentions with regard to maintaining the green cards, was clear to the Court that De Lucia did not share those intentions.

Castillo argued that even if the Children can only have one habitual residence at a time, they had alternating habitual residences such that both Italy and the United States should be considered the Children’s places of habitual residence. She relied on two Ninth Circuit cases, Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), and Valenzuela v. Michel, 736 F.3d 1173 (9th Cir. 2013)in support of this argument, but neither supported finding that the United States was the Children’s place of habitual residence on the date of removal under the facts of this action. The Court concluded that the State of habitual residence for R.T.D.L. and N.A.D.L. immediately before the removal was Italy.

De Lucia established, and Castillo did not dispute, that De Lucia had custody rights under Italian law, that he was exercising those rights at the time of the removal, and that Castillo’s removal of the children to the United States violated De Lucia’s custody rights.
Under Italian Civil Code Article 316, “[b]oth parents are entitled with parental responsibility and they shall exercise it by mutual agreement.” “When both parents have recognized a child who was born out of wedlock, they shall be both entitled to exercise parental responsibility.”. under Article 316, both parents have the right to decide on the children’s residence, even if the parents are not married. To change a child’s habitual residence, both parents must agree on the change or convince a judge to grant one parent sole authority to make this decision. The Court found that Castillo “wrongfully removed” the Children from Italy.

Castillo argued that even if the Children were wrongfully removed from Italy, one of the Convention’s narrow exceptions to return applies. Under the Convention, the Court is not bound to order the return of the Children if Castillo proves that “there is a grave risk that [the Children’s] return would expose the[m] to physical or psychological harm or otherwise place the child[ren] in an intolerable situation.” Convention art. 13. “Castillo “must ‘show that the risk to the child[ren] is grave, not merely serious. In this Circuit, the district court is not required to also find that the home country is unable to protect the child from that grave risk of harm.” *8 A “child’s proximity to actual or threatened violence may pose a grave risk to the child.” Baran v. Beaty, 526 F.3d 1340 (11th Cir. 2008); Gomez, 812 F.3d at 1013, 1015. And in Taylor v. Taylor, 502 F. App’x 854 (11th Cir. 2012) Castillo argued that the Children face a grave risk of harm if they are returned to Italy because she had been the victim of domestic violence at the hands of De Lucia; because De Lucia had been sexually inappropriate with the Children; and because the Children would be separated from their primary caretaker if the Children were returned to De Lucia. Castillo presented evidence that De Lucia has a bad temper and has engaged in violent behavior directed at her. But the record also established that the physical violence was isolated, sporadic, and not directed to the Children. Castillo did not testify about any incidents of violence against the Children, and she did not present evidence that she reported any such incidents to the police. And, according to Castillo, De Lucia did not commit any acts of physical violence against her after he moved out of her apartment in December 2016 This evidence suggested that Castillo herself does not believe that De Lucia posed a grave risk of harm to the Children. The Court was not persuaded that Castillo proved by clear and convincing evidence De Lucia posed a grave risk of harm to the Children.

Castillo also contended that De Lucia engaged in inappropriate behavior of a sexual nature with the Children. She pointed to two photos of the Children without clothes, as well as evidence of the “game of the father.” The Court found that the two photos of the Children were inconclusive. Castillo did not present evidence that De Lucia sexually abused either of the Children. The Court also observed that Italy is capable of protecting the Children if they were subjected to serious threats of harm.
Finally, Castillo argued that the Children would be placed in an intolerable situation if they were returned to Italy because they would be cut off from their mother, at least until the Italian court could adjudicate the custody dispute (unless the parties can reach an interim visitation agreement). The Court noted that in every case where a child is returned under the Convention, she may face a risk of psychological harm by being cut off from one parent while the custody dispute is adjudicated. Castillo did not point the Court to any precedent suggesting that this concern merited application of the narrow grave risk of harm exception. Rather, the “intolerable situation” exception has only been applied in a handful of circumstances. The Court concluded that Castillo did not prove by clear and convincing evidence that the grave risk of harm exception to return applied here.

Castillo argued that if the Court ordered return of the Children, the Court should take measures to lessen the risk of harm to the Children. The Court found no grave risks that would justify denial of De Lucia’s petition.

De Lucia asked that Castillo be required to pay his fees and expenses. The Eleventh Circuit has suggested that there are two circumstances under which an award under § 9007(b)(3) is “clearly inappropriate.” The first is when “a fee award would impose such a financial hardship that it would significantly impair the respondent’s ability to care for the child.” Rath v. Marcoski, 898 F.3d 1306, 1311 (11th Cir. 2018). The second is when “a respondent had a good faith belief that her actions in removing or retaining a child were legal or justified.” In this case, De Lucia was proceeding in forma pauperis, so he paid no court fees. De Lucia was represented by pro bono counsel, so he owed no fees or expenses to his lawyers. The Court declined to make such an award in this case. The Court, however, found that Castillo should be required to help pay for the Children to return.

Castro v Renteria, 2019 WL 1761546 (D. Nevada, 2019)[Mexico]`[Wrongful removal][Petition denied]

          In Castro v Renteria, 2019 WL 1761546 (D. Nevada, 2019) before the Court was Respondent Bertha Hernandez Renteria’s Objections to the Magistrate Judges First Report and Recommendation (“First R&R”), and “Second Report and Recommendation”. The Court denied the petition for return.

          This case concerned a petition to return an eight-year old child to Mexico Z.F.M.Z, presently resided in the United States with Respondent (her grandmother). Petitioner was Z.F.M.Z.’s half-sister. Z.F.M.Z. was born in Las Vegas, Nevada on November 23, 2009, to Rusia Michel Zamora (“Rusia”), her mother, and Raul Flores Hernandez (“Raul”), her father. Rusia and Raul thereafter returned to Mexico with Z.F.M.Z. In Mexico, Z.F.M.Z. lived primarily with Rusia, and part of the time with Raul. In April of 2014, however, Rusia disappeared. After Rusia’s disappearance, Raul and Respondent both cared for Z.F.M.Z. through an informal arrangement. Respondent cared for Z.F.M.Z. on the weekdays, and Raul cared for her on the weekends. Z.F.M.Z. would also spend time with Petitioner. In May of 2017, Raul and Petitioner initiated custody proceedings against Respondent before a judge in the Sixth Judicial District Court of the State of Jalisco, Mexico (“Jalisco court”). Raul received custody over Z.F.M.Z, on May 8, 2017, for the pendency of those custody proceedings. Nevertheless, Z.F.M.Z. resided with Petitioner and her family on the weekends and some weekdays, and other times with Raul. That arrangement ended when Raul was arrested upon allegations of drug trafficking, after which, according to Petitioner’s testimony, Raul informally gave Petitioner custody over Z.F.M.Z. As the custody proceedings continued in the Jalisco court, Respondent received short-term “provisional custody” allowing her to take Z.F.M.Z. to be interviewed by a psychologist. That term of provisional custody was initially set for August 11, 2017, to August 18, 2017, when another custody hearing was to take place.  However, after Respondent appeared at the August 18, 2017 hearing without Z.F.M.Z. and without a psychological report, Respondent received an extension of provisional custody to September 8, 2017.  Respondent was not allowed to leave the State of Jalisco or Mexico with Z.F.M.Z. during those times.

 On August 30, 2017, Petitioner informed the Jalisco court that Respondent had left Mexico with Z.F.M.Z. That same day, the Jalisco court entered an Order prohibiting Respondent from leaving Mexico with Z.F.M.Z., set a hearing for September 8, 2017, and authorized a warrant for Respondent’s arrest. Respondent, however, failed to appear at the September 8, 2017 hearing. The Jalisco court then received a letter on September 13, 2017, from Respondent, stating that she would be staying in the United States indefinitely with Z.F.M.Z. Moreover, as of August 31, 2017, Respondent had enrolled Z.F.M.Z. in a Las Vegas, Nevada elementary school. On July 4, 2018, Petitioner filed an initial application for the return of Z.F.M.Z. with the Jalisco court, naming the Jalisco court judge as the petitioner. That application was returned, however, as needing more information. Petitioner then submitted a complete application to the Mexican Central Authority on August 20, 2018. About three days later, the United States Department of State received that application.   On September 7, 2018, Petitioner filed her Complaint with the Court. During a case-management conference on September 26, 2018, the Court imposed a visitation schedule. One day after the Court’s case-management conference, Respondent obtained a guardianship order over Z.F.M.Z. from the Family Division of the Eighth Judicial District Court for Clark County, Nevada.

          The Court then held an evidentiary hearing on the merits of this case on November 9, 2018, with Judge Hoffman presiding. Judge Hoffman filed a Report and Recommendation concerning the merits of Petitioner’s Complaint on November 29, 2018. which recommended, among other things, that the Court grant Petitioner’s Complaint pursuant to the Hague Convention, and order Respondent to return Z.F.M.Z to Mexico.

          On the merits of the petition, Judge Hoffman concluded that Petitioner “established by a preponderance of the evidence a claim for return of [Z.F.M.Z.] to Mexico under the Hague Convention.”. Specifically, Judge Hoffman found that “petitioner had custody rights and was exercising those rights at the time respondent absconded from the Mexican court’s jurisdiction and wrongfully retained [Z.F.M.Z.].”  The basis for this finding was Respondent’s concession that Mexico was Z.F.M.Z.’s habitual residence, and Petitioner had been exercising custody rights in Mexico at the time of the wrongful act. see Hague Convention, Art. 3, 19 I.L.M at 1501; Mozes v. Mozes, 239 F.3d 1067, 1070 (9th Cir. 2001) (explaining that an act is “wrongful” under the Hague Convention when the petitioner’s rights “were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.”).

          Respondent’s first objection to the Second R&R concerns the conclusion that this case is based on Respondent’s “wrongful retention” of Z.F.M.Z. in the United States, rather than “wrongful removal” of Z.F.M.Z. from Mexico. The focus of Respondent’s objection to classifying this case as one of wrongful retention lies with that classification’s practical effect on Respondent’s timeliness defense pursuant to the Hague Convention. Typically, wrongful removal refers to the respondent unilaterally taking the child out of their habitual residence in violation of the petitioner’s rights and without the petitioner’s permission. Cf. Lozano v. Montoya Alvarez, 572 U.S. 1, 9 (2014). By contrast, wrongful retention most often refers to the respondent keeping the child out of their habitual residence beyond the time authorized by the petitioner. Silverman v. Silverman, 338 F.3d 886, 897 (8th Cir. 2003); cf. Mozes, 239 F.3d at 1070–71, 1084–85. Determining whether a case is based on wrongful removal rather than retention not only decides the wrongful conduct at issue, but it also dictates the timeliness of a petition pursuant to the Hague Convention. A petition filed less than one year from wrongful removal or retention generally requires return of the child to her country of habitual residence. See Hague Convention, art. 1, I.L.M. at 1501; see also Abbott v. Abbott, 560 U.S. 1, 7, 8, 20 (2010). Conversely, a petition filed more than one year after wrongful conduct is subject to a “well-settled” defense under Article 12 of the Hague Convention—a defense that permits courts to depart from the general mandate of “order[ing] the return of the child.” Lozano v. Montoya Alvarez, 572 U.S. 1, 19 (2014) (Alito, J., concurring); see Hague Convention, art. 12, 19 I.L.M at 1502.

           Judge Hoffman’s Second R&R considered this case as one of wrongful retention because Respondent held “provisional custody” on August 11, 2017, until September 8, 2017; and Respondent “wrongfully retained” Z.F.M.Z. in the United States when Respondent failed to appear at the Jalisco court’s custody hearing on September 8, 2017. [R]espondent’s failure to appear at the court-ordered hearing on September 8, 2017, was the earliest unequivocal act when petitioner should have known that respondent had wrongfully retained [Z.F.M.Z.].”). The Second R&R alternatively noted that Respondent’s intent to remain in the United States became “unequivocally clear” when the Jalisco court received a letter from Respondent on September 13, 2017, declaring her intention to remain in Las Vegas with Z.F.M.Z. The commencement date for the one-year period under Article 12, according to the Second R&R, thus began on September 8, 2017, or, at the latest, on September 13, 2017. Based on those dates, the petition was timely filed. However, upon de novo review of the facts in this case, the Court found that this matter was one of wrongful removal. Though Respondent failed to appear at the Jalisco court’s hearing on September 8, 2017, and subsequently notified the Jalisco court on September 13, 2017, that she would not be returning to Mexico with Z.F.M.Z., Respondent had no right to take Z.F.M.Z. to the United States. On August 30, 2017, Petitioner notified the Jalisco court that Respondent had wrongfully left Mexico with Z.F.M.Z.  The Jalisco court then entered an order that same day imposing travel restrictions on Respondent, preventing her from leaving Mexico with Z.F.M.Z. during the pendency of custody proceedings. As Petitioner stated in her verified petition, “Petitioner never acquiesced or consented to the relocation of Z.F.M.Z. in the United States.” Moreover, Respondent’s provisional custody over Z.F.M.Z. between August 11 and September 8, 2017, only allowed Respondent to obtain a psychological report of Z.F.M.Z., with no facts showing a corresponding right to leave Mexico to seek that report. Respondent’s relocation of Z.F.M.Z. in the United States—without permission from Petitioner nor the Jalisco court, and in violation of Petitioner’s existing rights—therefore constituted wrongful removal as of August 30, 2017.

          Because the Court found that this case arose from Respondent’s wrongful removal of Z.F.M.Z. as of August 30, 2017, the petition for return of Z.F.M.Z. to Mexico was not timely filed with the Court within one year of the wrongful act that forms the basis of this case.; see, e.g., Muhlenkamp v. Blizzard, 521 F. Supp. 2d 1140, 1152 (E.D. Wash. 2007) (“The petition must be filed with the court of record, not the Central Authority, to file within the one-year limitation.”).

          In the Second R&R, Judge Hoffman found that Respondent proved, by a preponderance of the evidence, that Z.F.M.Z. was “well-settled” in the United States pursuant to Article 12 of the Hague Convention. Judge Hoffman based that finding on a thorough analysis of testimony from Z.F.M.Z., Z.F.M.Z.’s cousin, and Z.F.M.Z.’s teacher in Las Vegas. (Id. 15:14–16:2). No party objected to Judge Hoffman’s finding that Z.F.M.Z. is presently “well settled” in the United States. The Court could accept Judge Hoffman’s findings on this issue without further examination. Because Z.F.M.Z. was well-settled in the United States, the Hague Convention did not mandate the return of Z.F.M.Z. to Mexico for custody proceedings. See Hague Convention, art. 12, 19 I.L.M at 1502.

          Nevertheless, Petitioner argued that even if Z.F.M.Z. was well-settled, the Court could still order her return to Mexico based on equitable considerations surrounding Respondent’s wrongful acts. In re B. Del C.S.B., 559 F.3d 999, 1016 (9th Cir. 2009); Margain v. Ruiz-Bours, 592 F. App’x 619, 621 (9th Cir. 2015); Lozano, 572 U.S. at 20, 23. However, the facts surrounding this case did not warrant such discretionary action. In deciding whether to order the return of Z.F.M.Z. to Mexico although she was well-settled in the United States, the Court’s analysis began with whether Respondent concealed Z.F.M.Z.’s whereabouts after the wrongful removal. Judge Hoffman’s factual findings on the “well-settled” issue, alongside evidence presented during the evidentiary hearing, guided the Court’s discretionary decision to not order the return of Z.F.M.Z to Mexico. Specifically, Judge Hoffman highlighted testimony from Z.F.M.Z.’s teacher in Las Vegas, which revealed Z.F.M.Z.’s significant improvement in English, her participation in school activities, and several school awards that she achieved. Testimony from the evidentiary hearing also revealed how Z.F.M.Z.  made “three best-friends” in her new environment, and that Z.F.M.Z had family in the United States that supported her academic and recreational interests. Judge Hoffman thus concluded that Z.F.M.Z. “has established significant connections to Las Vegas.” Additionally, the record did not reveal an effort to conceal Z.F.M.Z. after her entry into the United States. Similar to In re B. Del C.S.B., 559 F.3d 999, 1016 (9th Cir. 2009), concealment was not a factor here, and thus did not favor returning Z.F.M.Z. to Mexico now that she was well-settled in the United States. Last, unlike in Fernandez, the party from whom the child was wrongfully taken (here, Petitioner) can litigate custody issues in the United States. Compare Fernandez, 909 F.3d at 365. By contrast, Respondent provided evidence that, because she removed Z.F.M.Z. from Mexico amid custody proceedings in the Jalisco court, Respondent had an outstanding warrant for her arrest in Mexico. Respondent therefore would likely be severely limited in litigating custody in Mexico, if capable of litigating at all. Further, Petitioner presented testimony from an expert in child psychology, revealing an opinion that Z.F.M.Z. “lives in constant fear” of separation from Respondent. Accordingly, the Court would not order discretionarily return Z.F.M.Z. to Mexico.  See In re Robinson, 983 F. Supp. 1339, 1346 (D. Colo. 1997) (“[T]he Convention has essentially decided that, once settled in the new environment, to again uproot the children would be harmful. In that sense the ultimate best interests of the children are served by denying the petition.”). The Court denied the petition under the Hague Convention.